ABCD Exchange : February 1999 : Upfront - Barriers to Effective Pain Management

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Mayday Scholars Survey Barriers to Effective Pain Management: Studies Point to Legal and Regulatory Problems
by Janice Lynch Schuster

Although poor pain management is rooted in clinical practice and cultural mores, legal, bureaucratic and regulatory barriers also affect clinicians’ ability to provide excellent pain management. To examine these problems and recommend solutions, researchers funded by The Mayday Fund examined the effects of managed care, public financing, criminal prosecutions in end-of-life care, and state medical society policies on the treatment of chronic and terminal pain. Their conclusions show that the practice of pain management suffers because clinicians, patients, insurers, and policymakers fail to understand the effects of pain and effective treatments.

At a January symposium in Washington, D.C., researchers described their work, conclusions and recommendations. Studies found that insurers inconsistently reimburse providers for pain treatment; public programs, such as Medicare and Medicaid, fail to cover certain kinds of pain relief; and misconceptions abound about the extent of criminal prosecution and regulatory reprisal for aggressive pain management.

Diane E. Hoffman, J.D., M.S., of the University of Maryland School of Law, examined practices and coverage among managed care plans to address pain management and palliative care, and conducted a study of medical directors at Blue Cross Blue Shield Plans around the country to review how their plans address pain management. Although the literature review revealed sparse information and data on coverage, the survey of 39 senior medical directors offered some insight on how one of the nation’s largest insurers addresses problems of pain management.

Hoffman found such variety in the way that BCBS plans cover pain management, she concluded that ". . . they seem to deal with treatment of pain and coverage issues on a case-by-case basis." Hoffman attributed this variation to different levels of awareness of the problem and the attention paid to it, a lack of consensus in how to manage pain, and different experiences in working with hospices, pain management experts and pain centers.

Hoffman also found that plans appear to be more concerned with treating chronic pain than terminal pain, an area which the majority of plans surveyed did not view as an issue in need of special attention. Although many of the senior medical directors surveyed were unfamiliar with palliative care and experts in it, they also felt that they were dealing adequately with this aspect of members’ care.

Public Sector Financing

Policies governing public sector programs do not appear to be much better, according to Timothy S. Jost, J.D., a professor at the Ohio State University. A telling point, Jost noted, is the absence of pain in many surveys and regulations. For instance, pain—assessment or treatment—is not even included as an item in 136-pages of federal nursing home regulations.

In an article on Medicare and Medicaid, Jost wrote, "Although Medicare and Medicaid pay for a great deal of pain management, they often stand in the way of, or at least fail to facilitate, the provision of adequate pain management services.

"Society is ambivalent about those in need, and about those in pain who need drugs to treat their pain.

Jost noted that many people who suffer from severe, debilitating pain are not covered by any insurance, public or private.

And those who are covered by Medicare or Medicaid face many gaps in coverage. For instance, Medicare does not cover out-patient, oral prescriptions for pain medications. Although Medicaid covers some out-patient prescriptions, states impose their own coverage caps.

Jost described problems in Medicare’s payment structure. For example, Medicare prohibits beneficiaries from receiving simultaneous benefits for skilled nursing facilities and hospice. These problems are further complicated by regulatory scrutiny and enforcement which have had the unintended effect of blocking pain management services.

Criminal Prosecution

Providers’ fear of criminal prosecution or professional sanctions for "over-prescribing" opioids creates further barriers to adequate pain management. Ann Alpers, J.D., assistant professor at the University of California in San Francisco, searched databases within the LEXIS-NEXIS system to find cases dating from 1990 in which physicians had been indicted or prosecuted for giving dying patients lethal doses of medication.

Alpers found 13 cases in which physicians were investigated but not prosecuted; five were indicted. Of the four physicians convicted in these cases, one awaits sentencing and one spent two years in jail. Two nurses have been investigated and two others indicted for their roles in providing lethal doses to dying patients.

In analyzing these cases, Alpers found common threads. For example, in each case involving a physician, he or she was viewed as "an outsider" in the community. A local newspaper judged one such physician, for example, writing that he "played the ponies. Drank and smoke. Drove his flashy Lincoln too fast."

At the January presentation, Alpers urged physicians to provide adequate pain management. She suggested that physicians feel confident that they will not be subject to investigation should they prescribe opiates for patients in pain.

"Prosecution in such cases is extremely unlikely—and it is even more unlikely if doctors have good relationships [with the community and colleagues]," Alpers said. "Poor pain management is the general standard of care—and best standards can conflict with local standards. The standard of care for the pain of all dying patients needs to be higher for everyone."

Medical Societies

Physicians erroneously believe that they are also likely to be sanctioned by their state medical societies. Ann Martino, Ph.D., executive director of the Iowa Board of Medical Examiners, echoed Alpers’ conclusions. In Martino’s review of 1990 to 1996 data on state medical board actions, she found "the perception of regulatory risk far exceeds the reality." Martino examined "what perpetuates the ethic [of under-prescribing pain medication] and how to change it."

Martino suggested that one way for medical boards to motivate doctors to prescribe adequate pain medications would be to sanction those who underprescribe. She acknowledged that standards would be difficult to set, but suggested that medical boards could "cultivate a standard for underprescribing."

The complex problems of inadequate pain management—and ways to promote better practice—will not be solved quickly or easily. However, by understanding the cause of the problem, those involved in improving end-of-life care are likely to find remedies.

For more information:
Detailed findings appear in a special issue of The Journal of Law, Medicine, and Ethics (Winter 1998). Contact American Society of Law, Medicine & Ethics, 765 Commonwealth Ave., Suite 1634, Boston, MA 02215, (phone) or www.aslme.org.

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This content is provided by Americans for Better Care of the Dying. For more information, visit www.abcd-caring.org.